What Does the Discovery Process Look Like in a Criminal Case?

There is a great deal of misconceptions about what happens before, during, and after a criminal case. This is in large part due to fiction, where for drama or because the writers don’t know the law, the criminal process is often shown truncated or overtly incorrect.

Today we want to focus on the discovery process, which is perhaps the most misunderstood aspect of the American legal system. For now, put aside what you think you may know, and allow us to discuss the facts.

Evidence Should Not Be a Surprise

Countless works of fiction depicting our legal system use a common dramatic trope. A criminal case appears to be going one way when, all of a sudden, either the defense or prosecution produces a shocking piece of evidence that completely shifts the likely outcome of the trial.

Fortunately for our criminal justice system, this more or less never happens. While the jury might be shocked by evidence, usually neither the prosecution nor defense should be encountering evidence mid-trial for the first time.

Even the best lawyer with an innocent client would have a hard time building a defense against a new piece of evidence moments after learning about it.

It takes time to fully understand a new piece of evidence and see where it fits into the narrative as it was initially understood. A fair trial can’t be “by ambush” because the point of a justice system (at least in theory) is to land upon the truth, not for one team to “win” against another.

This is why the American justice system has the discovery process. It is a useful system, although one with its own flaws which we will touch on later.

The Basics of Discovery

As noted by the American Bar Association, discovery “is the formal process of exchanging information between the parties about the witnesses and evidence they’ll present at trial.”

This is a months-long process pre-trial, intended to ensure all legal teams can build their cases with all known evidence in mind. They present the evidence they have and can also make requests of the opposing legal team for information relevant to the case.

(If you live in or near Orlando and will soon be going to trial, we recommend Ali Blankner. This well-reputed defense law firm can walk you through the discovery process and everything else you’ll need to do for the best chance of winning your case.)

The primary ways legal teams obtain evidence include:


Depositions are out-of-court statements given under oath by those involved in the case. Depositions might come in the form of video, a written transcript, or both. 

These make for useful tools when examining witnesses. While a witness might change what they say during the trial compared to what was said in a deposition, a good lawyer will use those differences to discredit the witness as dishonest or unsure if it benefits their case.


Subpoenaing is a process by which one side of a case requests the other to produce relevant records and other documents for inspection. While these requests ostensibly have to be relevant to the case, they can often be fairly broad.

Records obtained via subpoenas play an essential role in many trials. Bank statements, letters, and notes can often make or break a case.

Physical or Mental Examination

If relevant, a legal team may request to have an individual relevant to their case examined. For example, if their client is being tried for assault with a deadly weapon, they may want the alleged victim looked at by an expert to determine the extent of their injuries.

Other relevant details may include a person’s height, weight, mental state, and any other kind of examination that may be relevant to the case. Generally speaking, a person is protected from any kind of invasive examination, unless it is deemed essential to a fair trial.

Document Verification

A legal team may request that submitted documents and other kinds of evidence be verified by an expert. For example, if a damning document surfaces, a defense team will likely want to verify it is not a forgery.

It is not always possible for an expert to verify a document. For example, if the document is too generic or certain markers have been erased or damaged, they may have nothing to work from. While this does not mean the document is certainly legitimate or illegitimate, it will still be relevant in the trial.

Problems With Discovery

The discovery process, as it currently exists, is not without controversy. What is undeniable is that the present system favors wealthier or otherwise powerful clients and is a frequent tool to win a trial “by attrition” rather than by the merits of one’s case.

Some legal teams choose to use discovery to send many expensive discovery requests to defendants they know cannot afford them. Many teams win cases at this stage, simply because the opposition cannot afford to continue.

Discovery can hide evidence via legal loopholes that, from a logical or moral perspective, should likely be allowed to go to trial. In fact, any evidence inconvenient to a legal team incentivizes searching for such loopholes.

Meanwhile, some legal teams can use to discovery to do what is called “fishing.” This is a process by which a legal team requests large pools of information, often including irrelevant information a client would want kept private, in the hopes something useful for the case comes up.

What is unfortunate about the current system is even the best law firms will find themselves incentivized to use these various loopholes. After all, they owe their client the best possible results possible to achieve via whatever legal means may be available.

Discovery is an imperfect legal process and should be fixed to ensure a more just, fair system. Many experts believe harsher penalties for abusing discovery and redesigning how costs are paid for during this process will be essential steps towards fixing discovery.

A Criminal Case Needs to Be Fair

In short, the discovery process is an attempt to make criminal cases fair. While the system is imperfect, many legal experts agree that, in principle, it is a process essential to fair case litigation.

If you found this article interesting, we hope you will explore our site. We have a huge catalog of other content that is sure to interest you on a variety of other topics!

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